The Human Rights Blog of the Leitner Center for International Law and Justice

Protecting abortion as a human right in the U.S.

Just days after the Supreme Court struck down a restrictive Texas abortion clinics law, the state is now seeking to force all fetal tissue to be cremated or buried after abortions. In June, Louisiana passed a law banning the most common and safest form of abortion during the second trimester, effectively forcing women to undergo less safe abortion procedures or to not get abortions after 12 weeks of pregnancy. Alabama’s state legislature passed a bill in May restricting abortion clinics from operating within 2,000 feet of public elementary and middle schools. A new law in Indiana bars women from getting abortions if a fetus’ race, gender or genetic disability is the motivating factor. Bans on abortions at 20 weeks of pregnancy—when the fetus is still not viable outside the mother’s womb—are in effect in many states across the U.S. These are only some of the most recent draconian laws passed by U.S. states to restrict women’s access to abortion and to curtail women’s human and reproductive rights. As attacks on a woman’s right to control her own body increase in frequency and fervor, it is more urgent than ever to protect a woman’s right to abortion as a fundamental human right.

Abortion clinics are closing down at an alarming rate across the U.S., in both blue states and red states. While statistics on abortion clinics closures are scarce, one report by Bloomberg estimated that at least 162 abortion clinics in the U.S. stopped providing services or shut down entirely since 2011. Only 21 abortion providers have opened up to take their place. In many states, just a few (or sometimes, just one) abortion clinics service the entire area. Many women are being forced to travel hours and across state lines to obtain legal, timely and safe abortions. The drastic decrease in abortion clinics is largely due to various laws passed around the country placing medically unnecessary restrictions on doctors and abortion providers. These include requiring doctors to have admitting privileges at or an affiliation with a nearby hospital, imposing burdensome licensing requirements for abortion clinics (i.e. being licensed as ambulatory surgical centers), excessively regulating the facilities where an abortion will be performed and criminalizing the most common forms of abortion. (These first two practices were ruled unconstitutional in the 2016 landmark case, Whole Woman’s Health v. Hellerstedt, by the Supreme Court, and will likely see legal challenges in many states across the U.S. Despite this, history tells us that more creative and restrictive abortion laws will only replace them.)

Beyond these attacks on the clinics themselves, states have passed laws imposing medically unnecessary wait times and counseling on women seeking abortions, as well as restrictions on insurance coverage and minors’ access to abortions. Coupled with the sharp decline in abortion clinics, women all over the U.S. are being denied the health care that they need, deserve and to which they have a right. They are faced with the devastating reality that they no longer have full control over their bodies, their labor, their choice of motherhood. And they are seeing that if they want to take back control—sometimes through purchasing abortion-inducing medication on the internet, as Purvi Patel did in Indiana—they will be arrested, jailed, criminalized and even demonized.

In recent years, abortion access and reproductive rights have been the most threatened since Roe v. Wadelegalized abortion in the U.S. in 1973. The debate over abortion has often centered on morality and religion, rather than the rights of women. As states pass more and more laws restricting abortion in one way or another (with, perhaps, the ultimate goal of banning abortion altogether), we must understand that not only are these laws unconstitutional, but they are in violation of the U.S.’ human rights obligations under international law.

Abortion is a critical component of comprehensive reproductive health care for women. Denying women access to this procedure violates women’s right to life and health care. Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, guarantees the right to life, and governments are required to take the necessary steps (“positive measures”) to preserve life. Since reproductive health care is necessary for women’s survival, access to safe and legal abortion is protected under the ICCPR. Not only must governments respect this right, but states are also required to ensure that women do not risk their lives by seeking unsafe and illegal abortions due to restrictive abortion laws.

On several occasions, the Human Rights Committee has expressed concern about laws that restrict abortion, make abortion inaccessible or discourage safe and legal abortion services, and the Committee has consistently recommended loosening abortion laws. Earlier this year, the Committee affirmed that abortion is a human right under the ICCPR in a landmark case in Peru, in which a woman who was denied a medically necessary abortion received reparations from the government. In June, the Human Rights Committee ruled that Ireland’s abortion ban and the criminalization of access to abortion amounted to human rights violations. After the U.N. Working Group on the issue of discrimination against women in law and in practice conducted a 10-day fact-finding mission in the U.S., they noted in their 2015 preliminarily findings that women in the U.S. are facing increasing barriers to safe and legal reproductive care, which does not meet international human rights standards. They group also stressed that freedom of religion cannot justify the denial of reproductive health care.

Furthermore, laws that restrict access to abortion are discriminatory towards women, as they deny only women’s right to life and necessary health care. They also discriminate against female racial minorities and poor women, who are disproportionately affected by abortion bans and restrictions in the U.S. Since Articles 3 and 26 of the ICCPR protect the equal enjoyment of the rights stipulated in the covenant, anti-abortion laws violate women’s right to be free from gender-, race- and class-based discrimination under the ICCPR.

Beyond this, forcing women to carry pregnancies to term or to seek out unsafe, clandestine abortions is cruel, inhuman and even torturous. Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the U.S. is also a party, guarantees individuals the right to be free from torture and cruel, inhuman or degrading treatment. The U.N. Committee against Torture has recognized that forcing women to carry pregnancies to term or to seek out illegal and unsafe abortions (in which their lives may be placed in danger) qualifies as cruel, inhumane or degrading treatment. Juan Mendez, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, classified lack of access to abortion as torture in his 2013 report. Furthermore, complete bans on abortion violate the rights guaranteed under CAT, according to the Committee, especially since these bans force women to carry pregnancies that result from rape or incest to term. Forced pregnancy, especially as a result of rape and incest, can be incredibly traumatizing, both physically and emotionally.

Recent attacks on abortion are fundamentally about controlling—and arguably, torturing—women. These restrictive laws not only violate women’s basic human rights, but they also contribute to an increasingly polarized, vicious and violent political and social climate. In March 2015, Donald Trump, the presumptive Republican nominee for president, said that women should be “punished” for getting abortions illegally. On Nov. 27, 2015, three people were shot dead and nine people were injured during a shooting at a Planned Parenthood in Colorado. Robert L. Dear Jr., the accused shooter, yelled that he was “a warrior for the babies” during his court hearing, making it clear that his acts of violence were motivated by anti-abortion views. Incidents of violence against and harassment of abortion providers, including arson, vandalism and attempted murder, have increased over the past few years. And groups of anti-abortion activists regularly gather near abortion clinics to terrorize women seeking to exercise their reproductive rights and control over their own lives.

Pro-choice advocates have long worked to establish and portray abortion as a constitutional right, recognized and protected by Roe v. Wade and derived from the constitutional right to privacy. While the latest Supreme Court case was a distinct victory for women and reproductive rights, restrictive laws on abortion like the ones mentioned before have slowly and will likely continue to erode women’s right to abortion. As women face sustained and relentless attacks on their reproductive rights, we must work to protect abortion not just as a constitutional right, but also as a fundamental human right.

Elizabeth Gyori is the Editor of Rights Wire.

The views expressed in this post remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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The views expressed on this blog remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School or Fordham University.

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